Workplace Violence: CMS Warns of Violations of Hospital Conditions of Participation

Workplace violence has become one of the key management challenges and sources of enterprise risk for hospitals over the past several years. Threats from patients, visitors, and staff have increased, sometimes with tragic consequences. 

On November 28, 2022, the Centers for Medicare & Medicaid Services (CMS) Center for Clinical Standards and Quality issued a memorandum to State Survey Agency Directors stating that hospitals risk Condition of Participation (CoP) violations for failure to adequately respond to and prevent incidents of workplace violence. 

CMS has identified three (3) specific CoP tags for surveyors to cite, including:

• 42 C.F.R. §482.13(c)(2) (Patient Rights, Privacy and Safety) obligation to care for patients in a safe setting.
• 42 C.F.R. §482.15(d)(1) (Emergency Preparedness, Training Programs) with CMS referencing “requirements for hospitals to train staff and to have policies and procedures aimed at protecting both their workforce and their patients.”
• 42 C.F.R. §482.15(a) (Emergency Preparedness, Emergency Plan), indicating that CMS expects the emergency preparedness plan to be “based on, and include, a documented, facility-based and community-based risk assessment, utilizing an all-hazards approach. It must also include strategies for addressing emergency events identified by the risk assessment as well as address the patient population, including, but not limited to, persons at-risk.”

The memo also cites examples where CMS has cited hospitals in the past for alleged failures in these areas including:

• a nurse in a unit without adequate staffing who was sexually assaulted by a behavioral health patient who was stopped only through intervention by other patients;
• a patient who died after hospital staff and law enforcement performed a takedown that resulted in a hospital custodian holding the patient down on the floor with his knee against the patient’s back, during which the patient stopped breathing and died; and
• a patient who was acting out and shot in his hospital room by off-duty police officers following the failure of hospital staff to perform appropriate assessment and de-escalation of the patient.

While each of the cited examples is tragic, they all share a common thread – patients with severe behavioral health needs that likely exceed the capacity of a general acute care hospital. Further, the lack of suitable psychiatric discharge options in most communities is well known. In other words, CMS is proposing enforcement actions against hospitals at the same time that the burden of caring for behavioral health patients, coupled with the acknowledged shortage of available staffing, has compounded the challenges.

On the labor front, hospitals did not need any reminders of the growing workplace violence risk. Workers across hospitals, nursing homes, and other health care settings are at higher risk of workplace violence, as Bureau of Labor Statistics data show health care workers accounted for nearly 75% of 2018’s reported nonfatal workplace injuries and illnesses due to violence. Further, survey data released in September by the American College of Emergency Physicians (ACEP) outlined an increase in the number of Emergency Department workers who experienced or witnessed physical or verbal assaults and Press Ganey also recently estimated that about 57 assaults against nurses occur daily across the country. Despite these facts, there is currently no federal legislation addressing workplace violence against health care workers. However, ACEP and others have recently pushed for Congress to pass a bill that would require hospitals to develop more comprehensive workplace violate prevention plans mandated through the Occupational Safety and Health Administration (OSHA).

Despite this absence of Congressional action, CMS’ memo highlights that CMS and its surveyors will specifically be looking for systemic, policy, and training-based solutions – perhaps in the spirit of the sort that would be mandated through OSHA. Naturally, this flags one area of confusion that some hospitals have experienced in dealing with the overall issue of workplace violence: what department is responsible for addressing it? The answer is likely several. Hospital security, human resources, nursing, quality and patient safety, and compliance all have an opportunity to contribute to risk reduction plans. Framing the issue through the lens of the CoPs likely allows for the development of internal work plans and auditing by using existing systems of risk assessment and mitigation. Having suitable plans, policies, and training in place cannot prevent all incidents of workplace violence, but they are extremely useful in demonstrating a good faith, concentrated effort to reduce these threats.         

Foley is here to help you address the short- and long-term legal impacts of disasters on your facility. We have the resources to help you navigate the important legal considerations related to business operations and industry-specific issues. Please reach out to the authors, your Foley relationship partner, or our Health Care Practice Group with any questions.